Understanding the Transfer on Death Deed
If you own real estate property and are looking to avoid probate, which can be expensive and time-consuming, one way is with a transfer on death deed (TOD deed). This document may help you simply and inexpensively avoid probate for real estate. If you’re like the majority of people in the state of Ohio, you don’t have an established estate plan. You probably have an idea of who should get what property or money and when you want them to receive it, but without a documented estate plan, your property might not transfer according to your wishes. W. David Keast can help you with the process of establishing a TOD deed.
How a Transfer on Death Deed Works
With a TOD deed, the current owner designates one or more persons as beneficiaries. When the current owner dies, the beneficiary automatically becomes the owner of the property. The designated beneficiary can be an individual or an organization. If a married couple creates a TOD deed, the beneficiary will not acquire the property until the second spouse dies. The surviving spouse is able to revoke the TOD deed if they wish.A beneficiary should be designated by name, not just by their relationship to you. You may also designate alternative choices or successors in case the first beneficiary dies.
Advantages of a TOD Deed
- Transfer by will: The property must go through probate to be transferred to the new owner, even if the previous owner had a will. A TOD deed bypasses probate.
- Joint ownership: If someone is on the deed as a joint owner with rights of survivorship, this will avoid probate. Upon the death of one owner, the title goes to the surviving joint owner(s), but all joint owners have equal rights on the property. Therefore, selling or mortgaging the property requires the agreement of all joint owners. If you have a TOD deed, you keep full control of the property.
Other benefits a TOD deed can include:
- Maintaining homestead advantages: Many states offer tax benefits and asset protection for your principal residence. These benefits are maintained with a TOD deed.
- Tax savings: Because designating a beneficiary is not an immediate transfer (the beneficiary does not acquire ownership until the current owner's date of death), no federal gift tax is owed.
- Maintaining Medicaid eligibility: Receiving a gift of property within a certain period before applying for Medicaid usually delays the receipt of benefits. The government may also seek reimbursement from the recipient's probate estate upon their death. However, a TOD deed is not usually considered a gift of property, and the property part of the probate estate is not subject to reimbursement.
How to Create a Transfer on Death Deed
As with any real estate deed, the TOD document must comply with state law. All deeds must include certain information, such as the names of the grantor (current owner) and grantee (beneficiary), legal description of the property, the signature of the grantor, and legal witness and notary requirements. Other provisions may include minimum type size and formatting to allow space for recording stamps. Particular language must be used to create a TOD deed. It must clearly state the name of the beneficiary (usually referred to as the "grantee beneficiary), and it must say that transfer will take place upon the death of the current owner. Before the current owner's death, the TOD deed must be recorded in the county's property records where the property is located. This is a matter of taking the original TOD deed to the county public records office and paying a small fee. The records clerk will stamp the deed to indicate the date it was received, officially enter it in the county records, and return the original deed to you. Preparing a TOD deed is simple but must be done in compliance with state law. Some states have an approved form, and using it may be the safest way to ensure it is done correctly. W. David Keast is a trusted estate planning lawyer in Youngstown, Mahoning County, and the surrounding area. David will help you to make full use of legal tools available under Ohio law to protect your assets, to leave a legacy, and to control what happens in the event of incapacity.
Deciding if a TOD Deed is Right For You
The ultimate goal of a TOD deed is to avoid the costly probate process after the owner of real estate dies. But the laws governing these types of deeds or similar documents can vary widely from state to state. A TOD deed might not be the right choice in certain situations. Consult with an estate planning attorney to determine if one of these deeds is right for you and your family. W. David Keast specializes in estate planning and can answer any questions. Call 330-788-2800 or request an appointment today!